The Saskatchewan Labour Relations Board has ruled that it does not have the jurisdiction to appoint counsel or cover legal costs for an employee embroiled in a dispute with his union and employer.
The decision underscores the limitations of the Board’s authority, leaving the worker to continue his case without the legal support he sought.
Background
The board rejected the request by M.M., a self-represented applicant, to have the Board appoint legal counsel to assist him in a hearing against his union, SEIU-West, and the Saskatchewan Health Authority (SHA). M.M. had argued that without legal representation, he was at a disadvantage, particularly given the complex nature of the case.
The ruling determined that the Board lacks the statutory authority to appoint an “amicus” — a legal advisor funded by the public purse — or to order either the union or the employer to pay for his legal counsel. The decision followed submissions from both SEIU-West and the SHA, who argued that such an appointment was beyond the Board’s jurisdiction and that there was no legal basis for awarding advanced costs in this context.
The decision highlights a significant aspect of administrative law, emphasizing that tribunals like the Saskatchewan Labour Relations Board must operate within the confines of the powers granted to them by their enabling statutes. As it noted, “Administrative tribunals or agencies are statutory creations: they cannot exceed the powers that were granted to them by their enabling statute.” This principle, drawn from the Supreme Court of Canada’s decision in ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), was central to the Board’s reasoning.
M.M.’s case had already seen delays, with the hearing initially scheduled for November 2023 but adjourned at his request. When the hearing resumed in June 2024, his concerns about his lack of legal representation led to the application for the appointment of counsel. However, despite the urgency expressed by M.M., the Board found that it could not provide the relief he sought.
No power to appoint an amicus
The board referenced Part VI of the Saskatchewan Employment Act, the governing statute, noting that while it has the authority to add parties to a hearing and cure irregularities, it does not have the power to appoint an amicus or to direct government resources for such a purpose. The ruling further clarified that the Board, unlike a statutory court with inherent jurisdiction, does not have implied powers necessary to its function that would allow for the appointment of an amicus.
SEIU-West and SHA had both argued against the appointment of counsel at public expense, with SEIU-West citing the absence of precedent and relevant jurisdictional authority. The union pointed to decisions from other tribunals, including the Ontario Human Rights Tribunal, which have similarly found that they lack the jurisdiction to appoint an amicus or provide for legal representation at public expense.
Application for advanced costs
In addition to declining the request for an amicus, the Board also dismissed M.M.’s application for advanced costs. He had sought an order requiring the union or employer to pay for his legal fees in advance of a final determination in his case.
However, the Board ruled that its costs jurisdiction is limited to compensating for monetary loss after a violation has been found, not to awarding costs in advance. He cited previous decisions of the Board, which have consistently interpreted costs jurisdiction as being exceptional and closely tied to the compensation for losses directly resulting from a breach of the Act.
The Board’s decision leaves M.M. to continue his case without the legal representation he had hoped for, underscoring the challenges faced by self-represented litigants in complex legal proceedings. The ruling also serves as a reminder of the limitations of administrative tribunals, which, unlike courts of general jurisdiction, must adhere strictly to the powers and functions defined by their enabling statutes.
For more information, see MUHAMMAD WAJEEH MUSTAFA v SEIU-WEST, 2024 CanLII 75092 (SK LRB).
